Alcoholism: A Protected Disability

The Americans with Disabilities Act and the California Fair Employment and Housing Act (FEHA) both consider alcoholism a protected disability. Alcoholism is considered a genetic and progressively debilitating illness. The disease affects more men than women and commonly surfaces between the ages of 20 and 40. More than 20 million Americans suffer from alcohol or drug dependency. Common symptoms are bloodshot eyes, hand tremors, mood swings, absenteeism, long lunches, bloated or flushed face and irritability in the morning.

Statistically alcoholic employees are (1) far less productive; (2) use 3 times as many sick days; (3) are more likely to injure themselves or someone else; and (4) are 5 times more likely to file workers’ compensation claims.

Individuals suffering from alcoholism who have undergone treatment from a health care provider are also deemed to have a “serious health condition” under the Family Medical Leave Act. Up to 12 weeks per year of FMLA leave is available to any employee with a serious health condition that makes the employee unable to the functions of his or her job.

If an employee is satisfactorily performing his or her job, an employer cannot discharge the employee simply for being an alcoholic. However being an alcoholic per say, is not the same as “drinking on the job” or being “under the influence” while working–unsafe conduct which is universally banned by most employer alcohol and drug-use policies.

Employer should avoid “regarding” or perceiving an employee as an alcoholic–without actual proof of the disability. If an employee denies being an alcoholic or having a drinking problem, the employer should take his word for it or risk a disability lawsuit on the grounds that the employee was disciplined or terminated because the employee was regarded as having a protected disability. However, an employer still has the right to expect the employee to meet normal job performance standards.

If an employee requests leave to participate in a rehabilitation program, the employer should provide it or risk liability for failing to accommodate the employee’s disability. Labor Code Section 1025 states that every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program so long as it does not impose an undue hardship on the employer.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or daly@dalylawfirm.co.